Research › Search › Judgment

Chhattisgarh High Court · body

2012 DIGILAW 319 (CHH)

RATAN KUMAR JAIN v. STATE OF M. P.

2012-12-05

SUNIL KUMAR SINHA, YATINDRA SINGH

body2012
ORDER 1. 'We do not inherit the earth from our ancestors, but borrow it from our children' is an old proverb. It is for us how we give back the mother eal1h to our children. These cases are, in a way, reminder of that saying and are for the following reliefs: Writ Petition No.4520 of 2000 (the first WP) is to restrain the South Eastern Coalfield Limited (the SECL) from illegally mining the reserved forest area, felling the trees, and to prosecute the culprits for not taking any action; Writ Petition (C) No. 5354 of 2009 (the second WP) is against the order of the Additional Collector Manendragarh, District Korea (CG), dated 22.8.2009 in revenue case No. 3A-62/2006-2007, rejecting the objection of Shri Ratan Kumar Jain (the Petitioner) against the permission to the SECL to fell the trees. THE FACTS 2. In Chirmiri area, coal mining is being done since 1930's. After independence, collieries were nationalised and Coal India Limited (the Coal-India) was formed. It was further divided and the SECL was formed as a subsidiary company of the Coal-India. 3. The SECL is engaged in coal mining in the State of Chhattisgarh and the State of Madhya Pradesh. It also extracts coal at Chirmiri, district Korea, Chhattisgarh. 4. The collieries were earlier granted by leases to extract the coal. After nationalisation, leases were granted in favour of the Coal-India under the Mines and Minerals (Development and Regulation) Act, 1957 (the MM Act). Subsequently, leases were continued in favour of the SECL and are valid up to 28.8.2015. 5. The Parliament enacted the Forest Conservation Act, 1980 (the FC Act) for conservation and check further deforestation of forests. Mining activity is a non-forest activity. Even if there be a mining lease in favour of an entity under the MM Act, mining cannot be done within a forest area unless there is prior approval from the Central Government under the FC Act and possession is handed over by the State Government. 6. Trees are our lifeline; there is life because there are trees. If there were no trees, then we will surely die because of lack of oxygen. It is for this reason even if there is prior approval under the FC Act to carry on non-forest activity in a forest, it is necessary to have permission from the forest officials to fell the trees. 7. But what is a forest? If there were no trees, then we will surely die because of lack of oxygen. It is for this reason even if there is prior approval under the FC Act to carry on non-forest activity in a forest, it is necessary to have permission from the forest officials to fell the trees. 7. But what is a forest? Is it only the one that is declared to be forest by the government or can there be forest over private land? This question was taken up by the Supreme Court in a PIL, namely, Writ Petition (C) No.202 of 1995 (TN Godavarman Thirumulkpad Vs. Union of India and Others the Godavarman case). . 8. In the Godavarman Case, the Supreme Court has passed orders on different dates. In one of the orders, reported in (1997) 2 SCC 267 , the Court answered the aforesaid question. The Court held that: The FC Act was enacted with a view to check further deforestation, which ultimately results in ecological imbalance. It is enacted for the conservation of forests. It must apply to all forests irrespective of the nature of ownership or classification thereof; The word 'forest' must be understood according to its dictionary meaning and covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of section 2 (i) of the FC Act; The term 'forest land', occurring in section 2, will not only include 'forest' as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership; The prior approval of the Central Government is required for any non-forest activity within the area of any 'forest'; Unless there was prior approval of the Central Government, all on going activity within any forest in any State must cease forthwith. 9. In pursuance of the order in the preceding paragraph, the Government of the erstwhile State of Madhya Pradesh issued a letter No. 16/10/Saat/2A/90 dated 13.01.1997 addressed to all the Collectors to identify the areas that are 'forest' within the meaning of the FC Act. It was also clarified in the letter that a patch of land of 10 hectares or more with average 200 trees per hectare will be treated as forest. 10. It appears that the SECL was felling trees without obtaining necessary approval to do so. It was also clarified in the letter that a patch of land of 10 hectares or more with average 200 trees per hectare will be treated as forest. 10. It appears that the SECL was felling trees without obtaining necessary approval to do so. The Petitioner was a Journalist and had been making complaints to different District Authorities in the erstwhile State of Madhya Pradesh since 1993. However, when no action was taken, he filed first WP before the Madhya Pradesh, High Court. It was transferred to this Court after its formation. Facts Subsequent to Filing of the First WP 11. During pendency of the first WP, the Petitioner also filed different applications on 6.9.2001 and 23.4.2004 before Naib Tahsildar. On these applications, some reports were submitted. Thereafter, the SDO (revenue) passed orders on 22.7.2004 in Revenue Cases No.2/A-62/2002-2003 and 3/A-62/20022003 as well as on 18.1.2005 in Revenue Case No.1/A-62/2004-2005 imposing fine on the SECL for illegally felling 289, 909-and 34 trees respectively. 12. The SECL had a clearance from the Central Government upto 30.4.2003. Subsequently, a fresh temporary working permission to work in the Chirmiri forest area was granted for a period of 6 months on 14.6.2004; it expired on 13.12.2004. Thereafter, again a temporary working permission was granted for 6 months on 13.6.2005; it also expired on 12.12.2005. 13. The SECL was not granted any permission after 12.12.2005. However, according to the SECL, it continued to function in pursuance of the order of the Supreme Court dated 16.12.2005 in the Godavarman case. 14. In the temporary permission dated 13.06.2005, some conditions were imposed on the SECL. One of the condition was that no fresh area will be broken-up. Considering this aspect, an interim order was passed on 9.8.2005 in the first WP, directing that the SECL will not break-up any fresh area and will adhere to environmental safeguards as indicated in that permission. 15. The first WP was taken-up on different dates. However, it was directed on 20.2.2006 to be listed after disposal of the Godavarman case. 16. The SECL obtained permission from the Central Government under Section 2 of the FC Act on 15th July, 2011 for diversion of 989.4 hectare of forest land in the Chirmiri area. Thereafter, the SECL tiled an application before the State Government to hand over the land, so that it could start mining operations. 17. 16. The SECL obtained permission from the Central Government under Section 2 of the FC Act on 15th July, 2011 for diversion of 989.4 hectare of forest land in the Chirmiri area. Thereafter, the SECL tiled an application before the State Government to hand over the land, so that it could start mining operations. 17. The Petitioner filed an application before the State Government objecting to hand over forest land to the SECL on the ground that in case the land was handed over to the SECL then it will amount to contempt of the order dated 9.8.2005 passed in the first WP. 18. The SECL filed an application (IA number 19) before this Court for modification/ clarification of the order dated 9.8.2005. It was ordered to come up before the appropriate bench namely consisting of those Judges, who had earlier passed the order. 19. The matter was placed before a bench consisting one of the Judges, who had earlier passed the order. However, this bench thought that the matter should be dealt by the regular bench and thus, the matter was referred to the full bench as there was difference of opinion. 20. The full bench by order dated 6.9.2012, declined to answer the question on the ground that no question was referred to it. 21. In the aforesaid process, time had passed. The SECL approached the Supreme Court and an order was passed by the Supreme Court on 2nd November, 2012 that the High Court may decide the application filed by the SECL within 30 days of production of certified copy of the order and if necessary, a special bench be constituted. 22. The order of the Supreme Court was produced in the High Court on 9.11.2012. The matter was placed before the Chief Justice on the administrative side on 24.11.2012 with the request by the counsel of the SECL that as an outside counsel is likely to appear, the case may be listed on 29.11.2012. The case was ordered to come up for hearing before the regular bench dealing with the matter on 29.11.2012. 23. On 29.11.2012, the case was ordered to come up on 3.12.2012 and the parties were requested to provide a date chart and Photostat copies of the rulings. 24. The case was ordered to come up for hearing before the regular bench dealing with the matter on 29.11.2012. 23. On 29.11.2012, the case was ordered to come up on 3.12.2012 and the parties were requested to provide a date chart and Photostat copies of the rulings. 24. On 3.12.2012, considering the importance of the questions involved and the fact that the Petitioner was appearing in person: Shri Gautam Bhaduri, Shri Sanjay K Agrawal, the Advocate General (AG), and Ms. Fouzia Mirza, the Assistant Solicitor General (ASG) were requested to assist the Court as the friends of the Court; and The case was listed on 5.12.2012 so that they may prepare the case. However, it was clarified that the case will be finally decided or atleast the application filed by SECL will be decided. Facts - The Second WP 25. During pendency of the first WP, the SECL filed an application to grant permission to fell the trees standing on its residential colony. The permission to fell the trees was granted on 10.6.2009. 26. The Petitioner filed his objection against the permission granted on 10.6.2009. By the time the objection came up for hearing, some trees were felled by the SECL and only 63 trees remained. 27. The Additional Collector, Manendragrah, District Korea dismissed the objection of the Petitioner on 22.8.2009 and permitted the SECL to fell the remaining trees. The Petitioner has filed the second WP against this order. 28. We have heard the Petitioner in person; Shri Jagdeep Dhankar, Group Captain Shri Karan Singh Bhat and Shri RK Gupta for the SECL; the AG, the ASG, and Shri Gautam Bhaduri, as the friends of the Court. Shri Sanjay K Agarwal (AG), Ms. Fouzia Mirza (ASG), and Shri Goutam Bhaduri have appeared in the case as the friends of the Court. They will be entitled to fees for one case from the legal aid committee. The AG and the ASG also represented the State and Union of India. With the consent of the parties, both the writ petitions are being finally decided. THE DECISION - The First WP 29. It is clear from the facts stated in the preceding heading 'THE FACTS', that for sometime, there was neither any clearance nor any permission or any order of the Supreme Court with the SECL to work in the forest area. THE DECISION - The First WP 29. It is clear from the facts stated in the preceding heading 'THE FACTS', that for sometime, there was neither any clearance nor any permission or any order of the Supreme Court with the SECL to work in the forest area. Yet, the SECL not only carried out non-forest activity inside the forest but also felled the trees without any permission, for which it was also fined. 30. The record of the case also shows that there was apathy on the part of the State Government in taking any action. This ought not to have happened. Even if the SECL is mining coal for public good, unauthorised means are not permissible. One must remember a Gandhi's philosophy: 'The means are more important than the end: it is only with rightful means that desired end will follow.' 31. It is not only our philosophy, but law of the other nations as well. In R Vs. Inland Revenue Commissioners and others, ex parte Rossminster Ltd. and others (1979) 3 All ER 385: 'But it is fundamental in our law that the means which are adopted ... should be lawful means. A good end does not justify a bad means.' Merely because the SECL is a government company, it does not mean it has license to violate law. 32. One should stick to law; even a devil is entitled to his protection; one must remember Bolds in 'A man for all seasons' Act I Page 147 quoted with approval by US Supreme Court in Tennessee Valley Authority Vs Hiram G. Hill 437 US 153, 57 L.Ed 2nd 117 = 98 S Ct 2279 : 'The law Roper the law I know what's legal not what's right And will stick to what's legal... I am not God. The currents and eddies of rights and wrong which you find such plain sailing. I cannot navigate I am no voyager. But in the thickets of law, Oh there I'm a forester....what would you do? Cut a great road through the law to get after the Devil. And when the last law was down and Devil turned round on you - where would you hide, Roper the laws all being flat.... I cannot navigate I am no voyager. But in the thickets of law, Oh there I'm a forester....what would you do? Cut a great road through the law to get after the Devil. And when the last law was down and Devil turned round on you - where would you hide, Roper the laws all being flat.... This country's planted thick with laws from coast to coast-Man's law and God's - and if you cut them down...D’you really think you could stand upright in the winds that would blow then...Yes I would give the Devil benefit of law for my own safety's sake.' Environment, trees are not devil; they are entitled to much better protection: after all, we have borrowed them from our children and have a pledge to return them back - if not in a better position then at least in the same position as we had got them. 33. The Petitioner, as a good spirited citizen, had been making complaints. It was only when there was no response from the State officials that the first WP was filed. Even then, only a Naib Tahsildar, a petty official, took courage to make a report about the illegal felling of the trees by the SECL. 34. The counsel for the SECL submits that: The fine was imposed for illegal felling of the trees; It has been deposited; and • It should end of the matter. 35. It is unfortunate that a government company should think or submit like that. Felling of trees is not an ordinary damage that can be compensated in terms of money. The payment of fine is too little a price for felling the trees and that too not by an ordinary but a government company. 36. Everyone is expected to obey law; more so the SECL; it should be a model company: it did not come up to the expectation. However, it is a past, though we will refer back to it subsequently. 37. The SECL was granted approval in-principle on 24.4.2006 subject to the fulfillment of certain conditions. The State Government then furnished compliance report in respect of the conditions stipulated in the in-principle approval and had requested the Central Government to grant the final approval. 38. On the basis of the report of the State Government, the final approval was granted on 15.7.2011 under Section 2 of the FC Act. The State Government then furnished compliance report in respect of the conditions stipulated in the in-principle approval and had requested the Central Government to grant the final approval. 38. On the basis of the report of the State Government, the final approval was granted on 15.7.2011 under Section 2 of the FC Act. This is subject to the conditions mentioned therein: Under condition number 8, the permission is co-terminus with the mining lease granted under the MM Act or for 20 years, whichever is less; Under condition number 17, the SECL is to submit self monitoring report of compliance of the conditions; Under condition number 20, the Chief Conservator of Forest (Central) Regional Officer, Bhopal (the CCF-Bhopal) may impose conditions in interest of conservation, protection or development of forests. 39. Considering the past conduct of the SECL and the apathy of the officers, the State Government and the CCF-Bhopal may: Impose a condition of implanting 10 trees for every tree felled by the SECL and to be felled in future; Provide for independent monitoring committee, apart from the self regulation under condition 17 to oversee whether the conditions mentioned in the approval dated 15.7.2011 are being complied with or not; Nominate the Petitioner as one of the persons in the independent committee along with other persons. Needless to add that if the possession is handed over to the SECL, then the State Government and the CCF-Bhopal may impose any other condition as they think fit. 40. It is also c1aritied that it is open to the Petitioner or any other interested person to question validity of approval dated 15.7.2011 under the National Green Tribunal Act, 2010. THE DECISION - The Second WP 41. In the second WP, the order dated 22.8.2009 has been challenged. By this order the objection of the Petitioner against the permission to the SECL to fell the trees, has been dismissed. The permission to fell the trees and dismissal of objections was passed under Section 240 of the Chhattisgarh Land Revenue Code, 1959 (the Code). It is appealable under Section 44 and then revisable under Section 50 of the Code. 42. The Petitioner may, if he so likes, file an appeal against the same. It will also be open to him to file application to condone delay in filing the appeal. CONCLUSION 43. It is appealable under Section 44 and then revisable under Section 50 of the Code. 42. The Petitioner may, if he so likes, file an appeal against the same. It will also be open to him to file application to condone delay in filing the appeal. CONCLUSION 43. Our conclusions are as follows: (a) Considering the past conduct of the SECL and the apathy of the officers, the State Government and the CCF-Bhopal may: Impose a condition of implanting 10 trees for every tree felled by the SECL and to be felled in future; Provide for independent monitoring committee, apart from the self regulation under condition 17 of the approval dated 15.7.2011 to oversee the conditions mentioned in the approval are being complied with or not; Nominate the Petitioner as one of the persons in the independent committee along with other persons. Needless to add that if possession is handed over to the SECL then the State Government and the CCF, Bhopal may impose any other condition as they think fit. (b) The SECL was granted approval on 15.7.2011. The Petitioner or any other person may, if they are so advised, challenge the approval under the National Green Tribunal Act 2010; (c) The Petitioner may, if he so likes, file appeal against the order dated 22.08.2009. 44. In view of our conclusion : The first WP (Writ Petition No.4520 of 2000) is disposed of with observations; The second WP (Writ Petition (C) No.5354 of 2009 is dismissed with observations. First petition is disposed of and Second petition dismissed.